PURPOSE: The Missouri Commission on Human Rights has the authority to formulate policies to effectuate the purposes of Chapter 213, RSMo (1986). This rule sets forth the guidelines and interpretations governing, but not limited to the major aspects of employment testing.

Editor’s Note: The secretary of state has determined that the publication of this rule in its entirety would be unduly cumbersome or expensive. The entire text of the material referenced has been filed with the secretary of state. This material may be found at the Office of the Secretary of State or at the headquarters of the agency and is available to any interested person at a cost established by state law.

1. (1) For the purpose of the guidelines in this rule, the term test is defined as any penciland-paper or performance measure used as a basis for any employment decision. The guidelines in this rule apply, for example, to ability tests which are designed to measure eligibility for hire, transfer, promotion, membership, training, referral or retention. This definition includes, but is not limited to, measures of general intelligence, mental ability and learning ability; specific intellectual abilities; mechanical, clerical or other abilities, dexterity and coordination; knowledge and proficiency; occupational and other interest; and attitudes, personality or temperament. The term test includes all formal, scored, quantified and standardized techniques of assessing job suitability including, in addition to these guidelines, specific qualifying or disqualifying personal history or Employment Anti-Discrimination Laws

background requirements, specific educational or work history requirements, scored interviews, biographical information blanks, interviewers’ rating scales, scored application forms, etc.

1. (2) The use of any test which adversely affects hiring, promotion, transfer or any other employment or membership opportunity of classes protected by the Missouri Fair Employment Practices Act constitutes discrimination unless—

   1. (A) The test has been validated and evidences a high degree of utility as described; and
   2. (B) The person giving or acting upon the results of the particular test can demonstrate that alternative suitable hiring, transfer or promotion procedures are unavailable for his/her use.

2. (3) Each person using tests to select from among candidates for a position or for membership shall have available for inspection evidence that the tests are being used in a manner which does not violate section (2) of this rule. This evidence shall be examined for indications of possible discrimination, such as instances of higher rejection rates for minority candidates than nonminority candidates. Furthermore, where technically feasible, a test should be validated for each minority group with which it is used; that is, any differential rejection rates that may exist, based on a test, must be relevant to performance on the jobs in question.

   1. (A) The term technically feasible as used in these guidelines means having or obtaining a sufficient number of minority individuals to achieve findings of statistical and practical significance, the opportunity to obtain unbiased job performance criteria, etc. It is the responsibility of the person claiming absence of technical feasibility to positively demonstrate evidence of this absence.

   2. (B) Evidence of a test’s validity should consist of empirical data demonstrating that the test is predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job(s) for which candidates are being evaluated.

      1. 1. If job progression structures and

seniority provisions are so established that new employees probably will progress within a reasonable period of time and in a great majority of cases, to a higher level, it may be considered that candidates are being evaluated for jobs at that higher level. However, where job progression is not so nearly automatic or the time span is such that higher level jobs or employees’ potential may be expected to change in significant ways, it shall be considered that candidates are being evaluated for a job at or near the entry level. This point is made to underscore the principle that attainment of or performance at a high level job is a relevant criterion in validating employment tests only when there is a high probability that persons employed will, in fact, attain that higher level job within a reasonable period of time.

1. 2. Where a test is to be used in different

units of a multi-unit organization and no significant differences exist between units, jobs and applicant populations, evidence obtained in one (1) unit may suffice for the others. Similarly, where the validation process requires the collection of data throughout a multi-unit organization, evidence of validity specific to each unit may not be required. There may also be instances where evidence of validity is appropriately obtained from more than one (1) company in the same industry. Both in this instance and in the use of data collected throughout a multi-unit organization, evidence of validity specific to each unit may not be required; provided, that no significant differences exist between units, jobs and applicant populations.

1. (4) When probable cause is found by the investigating commissioner following the filing of a complaint pursuant to Chapter 213, RSMo (1986), the following standards shall apply:

   1. (A) For the purpose of satisfying the requirements of section (4) of this rule, empirical evidence in support of a test’s validity may be based on studies employing generally accepted procedures for determining criterion-related validity, such as those described in Standards for Educational and Psychological Tests and Manuals published by American Psychological Association, 1200 17th Street, N.W., Washington, D.C. 20036. Evidence of content or construct validity, as defined in that publication, may also be appropriate where criterion-related validity is not feasible. However, evidence for content or construct validity should be accompanied by sufficient information from job analyses to demonstrate the relevance of the content (in the case of job knowledge or proficiency tests) or the construct (in the case of trait measures). Evidence of content validity alone may be acceptable for well-developed tests that consist of suitable samples of the essential knowledge, skills or behaviors composing the job in question. The types of knowledge, skills or behaviors contemplated here do not include those which can be acquired in a brief orientation to the job; 8 CSR 60-3

   2. (B) Although any appropriate validation strategy may be used to develop empirical evidence, the following minimum standards, as applicable, must be met in the research approach and in the presentation of results which constitute evidence of validity:

      1. 1. Where a validity study is conducted

in which tests are administered to applicants, with criterion data collected later, the sample of subjects must be representative of the normal or typical candidate group for the job(s) in question. This further assumes that the applicant sample is representative of the minority population available for the job(s) in question in the local labor market. Where a validity study is conducted in which tests are administered to present employees, the sample must be representative of the minority groups currently included in the applicant population. If it is not technically feasible to include minority employees in validation studies conducted on the present work force, the conduct of a validation study without minority candidates does not relieve any person of his/her subsequent obligation for validation when inclusion of minority candidates becomes technically feasible;

1. 2. Tests must be administered and

scored under controlled and standardized conditions, with proper safeguards to protect the security of test scores and to insure that scores do not enter into any judgments of employee adequacy that are to be used as criterion measures. Copies of tests and test manuals, including instructions for administration, scoring and interpretation of tests results, that are privately developed and/or are not available through normal commercial channels, must be included as a part of the validation evidence;

1. 3. The work behaviors or other criteria

of employee adequacy which the test is intended to predict or identify must be fully described; and, additionally, in the case of rating techniques, the appraisal form(s) and instructions to the rater(s) must be included as a part of the validation evidence. This criteria may include measures other than actual work proficiency, such as training time, supervisory ratings, regularity of attendance and tenure. Whatever criteria are used they must represent major or critical work behaviors as revealed by careful job analyses;

1. 4. In view of the possibility of bias

inherent in subjective evaluations, supervisory rating techniques should be carefully developed and the ratings should be closely examined for evidence of bias. In addition, minorities might obtain unfairly low performance criterion scored for reasons other than supervisors’ prejudice, as when, as new employees, they have had less opportunity to learn job skills. The general point is that all criteria needs to be examined to insure freedom from factors which would unfairly depress the scores of minority groups; and

1. 5. Data must be generated and results

separately reported for minority and nonminority groups whenever technically feasible. When a minority group is sufficiently large to constitute an identifiable factor in the local labor market, but validation data have not been developed and presented separately for that group, evidence of satisfactory validity based on other groups will be regarded as only provisional compliance with these guidelines pending separate validation of the test for the minority group in question. A test which is differentially valid may be used in groups but one (1) group characteristically obtains higher test scores than the other without a corresponding difference in job performance, cutoff scores must be set so as to predict the same probability of job success in both groups;

1. (C) In assessing the utility of a test, the following considerations will be applicable:

   1. 1. The relationship between the test and

at least one (1) relevant criterion must be statistically significant. This ordinarily means that the relationship should be sufficiently high as to have a high probability of no more than one-to-twenty (1:20) to have occurred by chance. However, the use of a single test as the sole selection device will be scrutinized closely when that test is valid against only one (1) component of job performance; and

1. 2. In addition to statistical significance,

the relationship between the test and criterion should have practical significance. The magnitude of the relationship needed for practical significance or usefulness is affected by several factors, including: the larger the proportion of applicants who are hired for or placed on the job, the higher the relationship needs to be in order to be practically useful; conversely, a relatively low relationship may prove useful when proportionately few job vacancies are available; the larger the proportion of applicants who become satisfactory employees when not selected on the basis of the test, the higher the relationship needs to be between the test and a criterion of job success for the test to be practically useful; conversely, a relatively low relationship may prove useful when proportionately few applicants turn out to be satisfactory; the smaller the economic and human risks involved in hiring an unqualified applicant relative to the risks entailed in rejecting a qualified applicant, the greater the relationship needs to be in order to be practically useful; and conversely, a relatively low relationship may prove useful when the former risks are relatively high;

1. (D) The presentation of the results of a validation study must include graphical and statistical representations of the relationships between the test and the criteria, permitting judgments of the test’s utility in making predictions of future work behavior. Average scores for all tests and criteria must be reported for all relevant subgroups, including minority and nonminority groups where differential validation is required. Whenever statistical adjustments are made in validity results for less than perfect reliability or for restriction of score range in the test or the criterion, or both, the supporting evidence from the validation study must be presented in detail. Furthermore, for each test that is to be established or continued as an operational employee selection instrument, as a result of the validation study, the minimum acceptable cutoff (passing) score on the test must be reported. It is expected that each operational cutoff score will be reasonable and consistent with normal expectations of proficiency within the work force or group on which the study was conducted;
2. (E) In cases where the validity of a test cannot be determined under sections (3) and

1. (4) of this rule (for example, the number of subjects is less than that required for a technically adequate validation study or an appropriate criterion measure cannot be developed), evidence from validity studies conducted in other organizations, such as that reported in test manuals and professional literature, may be considered acceptable when—

   1. 1. The studies pertain to jobs which are

comparable (that is, have basically the same task elements); and there are no major differences in contextual variables or sample composition which are likely to significantly affect validity. Any person citing evidence from other validity studies as evidence of a test validity for his/her own job must substantiate in detail job comparability and must demonstrate the absence of contextual or sample differences cited in this rule;

1. (F) Under no circumstances will the general reputation of a test, its author or its publisher or casual reports of test utility be accepted in lieu of evidence of validity. Specifically ruled out are—assumptions of validity based on test names or descriptive labels; all forms of promotional literature; data bearing on the frequency of a test’s usage; testimonial statements of sellers, users or consultants; and other nonempirical or anecdotal accounts of testing practices or testing outcomes. Although professional supervision of testing activities may help greatly to insure technically sound and nondiscriminatory test usage, such involvement alone shall not be regarded as constituting satisfactory evidence of test validity; and

2. (G) Under certain conditions, a person may be permitted to continue the use of a test which is not at the moment fully supported by the required evidence of validity. If, for example, determination of criterion-related validity in a specific setting is practicable and required but not yet obtained, the use of the test may continue.

   1. 1. Provided the person can cite substan-

tial evidence of validity as described in subsection (4)(E) of this rule, and s/he has in progress validation procedures which are designed to produce, within a reasonable time, the additional data required. It is expected also that the person may have to alter or suspend test cutoff scores so that score ranges broad enough to permit the identification of criterion-related validity which will be obtained.

1. (5) An employment service, including private employment agencies and state employment agencies, as defined in section 213.010, RSMo shall not make applicant or employee appraisals or referrals based on the results obtained from any psychological test or other selection standard not validated in accordance with these guidelines.

   1. (A) An employment agency or service which is requested by an employer or union to devise a testing program is required to follow the standards for test validation as set forth in these guidelines. An employment service is not relieved of its obligation because the test user did not request validation or has requested the use of some lesser standard than is provided in these guidelines.
   2. (B) When an employment agency or service is requested only to administer a testing program which has been elsewhere devised, the employment agency or service shall request evidence of validation, as described in the guidelines in this part, before it administers the testing program and/or make referral pursuant to the test results. The employment agency must furnish on request this evidence of validation. An employment agency or service will be expected to refuse to administer a test where the employer or union does not supply satisfactory evidence of validation. Reliance by the user on the reputation of the test, its author or the name of the test shall not be deemed sufficient evidence of validity. An employment agency or service may administer a testing program where the evidence of validity comports with the standards provided in subsection (4)(E) of this rule. Employment Anti-Discrimination Laws
2. (6) The principle of disparate or unequal treatment must be distinguished from the concepts of test validation. A test or other employee selection standard even though validated against job performance in accordance with the guidelines in this rule cannot be imposed upon any individual or class protected by the Missouri Fair Employment Practices Act where other employees, applicants or members have not been subjected to that standard. Disparate treatment, for example, occurs where members of a minority group have not been subjected to that standard. Disparate treatment, for example, occurs where members of a minority group have been denied the same employment, promotion, transfer or membership opportunities as have been made available to other employees or applicants. Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, no new test or other employee selection standard can be imposed upon a class of individuals protected by the Missouri Fair Employment Practices Act, who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force.
3. (7) Employers, unions and employment agencies should provide an opportunity for retesting and reconsideration to earlier failure candidates who have availed themselves of more training or experience. In particular, if any applicant or employee during the course of an interview or other employment procedure claims more education or experience, that applicant should be retested.
4. (8) Selection techniques other than tests, as defined in section (1) of this rule, may be improperly used so as to have the effect of discriminating against minority groups. These techniques include, but are not restricted to, unscored or casual interviews and unscored application forms. Where there is data suggesting employment discrimination, the person may be called upon to present evidence concerning the validity of his/her unscored procedures as well as of any tests which may be used, the evidence of validity being the same types referred to in section (6) of this rule. Data suggesting the possibility of discrimination exists, for example, when there are differential rates of applicant rejection from various minority and nonminority groups for the same job or group of jobs or when there are disproportionate representations of minority and nonminority groups for the same job or group of jobs or when there are disproportionate representations of minority and nonminority groups among present employees in different types of jobs. If the person is unable or unwilling to perform the validation studies, s/he has the option of adjusting employment procedures so as to eliminate the conditions suggestive of employment discrimination.
5. (9) Nothing in these guidelines shall be interpreted as diminishing a person’s obligation under the Missouri Fair Employment Practices Act to undertake affirmative action to ensure that applicants or employees are treated without regard to race, religion, creed, color, sex, national origin or ancestry. Specifically, the use of tests which have been validated pursuant to these guidelines does not relieve employers, unions or employment agencies of their obligation to take positive action in affording employment and training to members of classes protected by the Missouri Fair Employment Practices Act.

AUTHORITY: section 213.030(6), RSMo 1986.* This rule was previously filed as 4 CSR 180-3.030. Original rule filed Oct. 31, 1973, effective Nov. 10, 1973.

*Original authority: 213.030, RSMo 1959, amended 1978, 1986, 1992, 1993, 1995, 1998.